Sovereignty: The State, The Individual and The International Legal System in The Twenty First Centur
If we go through the concept of sovereignty, it has always meant different things to the different persons. The inseparable connection between the sovereignty and the international law states that various definitions of sovereignty affects both the role of the state and the rights of the individual in international law. It is quite controversial to debate that developments in international law always mandates the understanding of sovereignty by the individuals and the way we use such terms. In this paper the author would be discussing the concept of sovereignty in relation to the states, the individuals and the international legal system with its evolution in the twenty-first century. It is now time to reflect back into the real concept of sovereignty. The actual thesis behind the paper is to understand the actual concept of sovereignty which will further deal with explaining the changes that we are going to face in the coming years in the way as to where persons will relate to states, states will relate to states within the ambit of international legal system and most importantly the process by which the internationals laws will affect and will apply to the individuals.
The thesis of the article is further divided into the following topics:
· Introduction / Concept of sovereignty
· Sovereignty and the relationship of the Individual to International Laws
· Changes in relations affecting Sovereignty and International Laws
CONCEPT OF SOVEREIGNTY
While discussing the concept of sovereignty it can be classified into internal and external sovereignty. Where internal sovereignty means that some individuals or group of persons, assembly of grounds of individuals, in every independent state have the final legal authority to command and enforce obedience. Thus it lays down that this kind of sovereignty exercises its absolute discretion over every individuals with the state. Whereas, by external sovereignty, the state is subjected to none of the authorities and is independent of any kind of compulsion on the part other states. Each and every status are independent as it reserves the authority to enter into any trade treaties or any military agreements. Thus the states are independent of other states. It thus ensures the national freedom. Every state is free to form its foreign policy and to join any alliance of power it likes to.
Definitions laid down by some of the Professors are as follows:
“That characteristics of the state by virtue of which it cannot be legally bound to except by its own or limited by any power other than itself.”- Jellineck.
“Sovereignty is the sovereign political power vested in him whose acts are not subject to any other on whose will cannot be over-ridden.”- Grotius.
“Sovereignty is the supreme power of the state over citizens and subjects unrestrained by law.” – Bodin.
Thus after studying all the above definitions it can be stated that sovereignty is the supreme of all. It is the supreme political power of the state, where it has unlimited powers and is not subjected to any other authority.
SOVEREIGNTY AND THE RELATIONSHIP OF THE INDIVIDUALS TO INTERNATIONAL LAWS
There has been lots of changes in the dimensions of sovereignty in the twenty first century. Talking about the monarchy of international laws the concept of sovereignty, whether it be in the relationship of the state to the individuals or the relationship of the states with the international legal system, has seen a number of changes by the end of twentieth century. The following changes does not only have implications in the nature of international laws at the beginning of twenty first century, but also for more relationship discussed under the thesis of sovereignty. To discuss the relationship between the individual and international laws it would obviously help us when the term sovereignty is applied properly in legal and political studies. At the end of the twentieth century it was quite common to hear from states “giving up sovereignty” to the international bodies or to the “faceless bureaucrats” which might be involved in dispute redressal system developed by a treaty. This relates to a two-tier social agreement to international law, under which the individuals relates to international legal system in international law. But here it breaks down as there is no international sovereign and just because it denies the fact that individuals can also form their rights and be subjected to limitation under international laws. Thus the developments in the twentieth century indicates that the following perspective was never appropriate.
Change in Relationships affecting sovereignty and International law
There are two types of changes observed in relationship between and among the states in twentieth century. The developments in international law in twentieth century had affected the relationship between the individual and the international law. The first change includes developments in relationship between the states that have an impact on rights and obligations of individuals. The second change includes situation directly involving the individuals in international legal relationships.
There had been a massive change in the states to capitalism in the economic realm and in the democracy in the political realm. This change had occurs in the last two decades of twentieth century. The fist change in this presents particular difficulties in the discussion of international law and the second change has led to normative changes in international law and the elevation of democracy as a right. If the democracy is becoming the norm of international law then that process must create corresponding rights for the individual within the international legal system. The right to claim a democratic form of government rests with the individual not with the state. This is because there the presumed benefits ultimately lie.
The impact on the sovereignty by the international organization that began with the primary purpose of economic cooperation is because they have evolved to levels of cooperation that affect political relationships. The best example is European Union which has grown front the original European Economic Community’s focus on trade relationships and tariffs to monetary, political and security cooperation. The creation of a new layer of law above that of the Member States, particularly when that law has a “direct effect” on individuals within each Member State,32 changes both the relationships among the Member States and their relationships with individuals (both citizen and alien). The result is new rights for individuals arising not from national but from supranational legal orders.
The rights imply corresponding limitations on the conduct of states in their relations with individual. They have clear implication for any discussion of sovereignty in terms of power shifts, federalism or any other specific realm.
Developments in the law governing relationships between states and private parties have brought private parties into the realm of international law and states under the authority of national legal systems. The very significant development of institutional dispute settlement mechanisms to deal with state-to-state economic and political disputes, and even with private party-to-state disputes, further colors contemporary concepts of sovereignty. Changes in international law, particularly in its application to relationships between states and individuals, require that we take great care in the manner in which we use the term “sovereignty.” They also require that we give careful consideration to the origins of that term, and to the importance of the individual in the term’s development and purpose. Multilateral frameworks for the protection of fundamental human rights became an important part of international law in the twentieth century. The European and Inter-American Courts of Human Rights now apply their relevant conventions in ways that place clear limitations on the conduct of states toward individuals. The movement from Nuremberg to the International Criminal Court demonstrates the international community’s willingness to hold individuals accountable for their conduct when their acts, under color of state authority, go beyond contemporary legal limits. An improper analysis of such developments carries the risk of leaving the concept of sovereignty in a state of suspended ambiguity as we enter a new century. Recognition that international law now limits the conduct of states in their relationships with individuals-is’ - not a bad thing, nor does it necessarily represent a diminution of the “sovereignty” of states. If peace and security are enhanced through relationships that place limitations on the conduct of states, that is not an emasculation of sovereignty, nor does it involve states “giving up” sovereignty.
Piyush Kimar Jalan (Amity University)
The views of the author are personal only. (if any)